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ANDR BIROTTE JR.United States AttorneyDENNISE D. WILLETTAssistant United States AttorneyChief, Santa Ana Branch OfficeDOUGLAS F. McCORMICK (180415)
Assistant United States AttorneyGREGORY W. STAPLES (155505)Assistant United States Attorney
411 West Fourth Street, Suite 8000Santa Ana, California 92701Telephone: (714) 338-3535Facsimile: (714) 338-3561E-mail: [email protected]
KATHLEEN McGOVERN, Acting ChiefCHARLES G. LA BELLA, Deputy Chief (183448)ANDREW GENTIN, Trial AttorneyFraud Section
Criminal Division, U.S. Department of Justice1400 New York Avenue, N.W.Washington, DC 20005Telephone: (202) 353-3551Facsimile: (202) 514-0152E-mail: [email protected]
[email protected] for PlaintiffUnited States of America
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
DAVID EDMONDS,
Defendant.
)))))))))
)))
SA CR No. 09-00077-JVS
PLEA AGREEMENT FOR DEFENDANTDAVID EDMONDS
1. This constitutes the plea agreement between DAVID
EDMONDS (defendant) and the United States Attorneys Office for
the Central District of California (the USAO) and the United
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States Department of Justice, Criminal Division, Fraud Section
(the Fraud Section) (the USAO and the Fraud Section are,
together, referred to as the Department of Justice) in the
above-captioned case. This agreement is limited to theDepartment of Justice and cannot bind any other federal, state,
local, or foreign prosecuting, enforcement, administrative, or
regulatory authorities.
RULE 11(c)(1)(C) AGREEMENT
2. Defendant understands that this agreement is entered
into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
Accordingly, defendant understands that, if the Court determines
that it will not accept this agreement, absent a breach of this
agreement by defendant prior to that determination and whether or
not defendant elects to withdraw any guilty plea entered pursuant
to this agreement, this agreement will, with the exception of
paragraph 19 below, be rendered null and void and both defendant
and the Department of Justice will be relieved of their
obligations under this agreement. Defendant agrees, however,
that if defendant breaches this agreement prior to the Courts
determination whether or not to accept this agreement, the breach
provisions of this agreement, paragraphs 21 and 22 below, will
control, with the result that defendant will not be able to
withdraw any guilty plea entered pursuant to this agreement, the
Department of Justice will be relieved of all of its obligations
under this agreement, and the Courts failure to follow any
recommendation or request regarding sentence set forth in this
agreement will not provide a basis for defendant to withdraw
defendants guilty plea.
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DEFENDANTS OBLIGATIONS
3. Defendant agrees to:
a) At the earliest opportunity requested by the
Department of Justice and provided by the Court, appear and pleadguilty to a one-count information in the form attached to this
agreement as Exhibit A or a substantially similar form, which
charges defendant with a violation of the Foreign Corrupt
Practices Act (FCPA), 15 U.S.C. 78dd-2(a), (g)(2)(A).
b) Not contest facts agreed to in this agreement.
c) Abide by all agreements regarding sentencing
contained in this agreement and affirmatively recommend to the
court that it impose sentence in accordance with paragraph 13ofthis agreement.
d) Appear for all court appearances, surrender as
ordered for service of sentence, obey all conditions of any bond,
and obey any other ongoing court order in this matter.
e) Not commit any crime; however, offenses that would
be excluded for sentencing purposes under United States
Sentencing Guidelines (U.S.S.G. or Sentencing Guidelines)
4A1.2(c) are not within the scope of this agreement.
f) Be truthful at all times with Pretrial Services,
the United States Probation Office, and the Court.
g) Pay the applicable special assessment at or before
the time of sentencing unless defendant lacks the ability to pay
and prior to sentencing submits a completed financial statement
on a form to be provided by the Department of Justice.
///
///
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THE DEPARTMENT OF JUSTICES OBLIGATIONS
4. The Department of Justice agrees to:
a) Not contest facts agreed to in this agreement.
b) Abide by all agreements regarding sentencingcontained in this agreement and affirmatively recommend to the
court that it impose sentence in accordance with paragraph 13 of
this agreement.
c) At the time of sentencing, move to dismiss the
underlying indictment as against defendant.
d) Provided that the defendant completes one year of
supervised release, if a term of supervised release is imposed by
the Court, and provided further that all of defendants financial
obligations in the Courts sentence have been discharged, not to
oppose defendants motion for early termination of supervised
release on the ground that defendant wishes to emigrate from the
United States to Thailand with his family.
e) In the event that any term of home detention or
community confinement be ordered as a component of defendants
sentence, the Department of Justice agrees that it shall
recommend that defendant be permitted to engage in business
travel as follows: (1) no more than once every three months
internationally for up to two weeks; and (2) no more than once
every month domestically for up to one week.
f) In the event that any term of supervised release
is imposed by the Court, the Department of Justice agrees that it
will not oppose defendants request to be permitted to engage in
necessary business travel either domestically or internationally
during any period of supervised release.
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NATURE OF THE OFFENSE
5. Defendant understands that for defendant to be guilty
of the crime charged in count one of the information, that is, a
violation of the Foreign Corrupt Practices Act, in violation ofTitle 15, United States Code, Section 78dd-2(a), (g)(2)(A), the
following must be true:
(1) defendant is a domestic concern, or an officer,
director, employee, or agent of a domestic concern;
(2) defendant acted corruptly and willfully;
(3) defendant made use or caused the use of the mails,
wires, or any means or instrumentality of interstate commerce in
furtherance of conduct that violates the FCPA;
(4) defendant offered, paid, promised to pay, or authorized
the payment of money, or offered, gave, promised to give, or
authorized the giving of anything of value to a foreign official;
(5) the payment or gift at issue in element (4) was to (a) a
person the defendant knew or believed to be a foreign official or
(b) any person and the defendant knew that all or a portion of
such money or thing of value would be offered, given, or promised
(directly or indirectly) to a person the defendant knew or
believed to be a foreign official, although a belief that an
individual was a foreign official does not satisfy this element
if the individual was not in fact a foreign official;
(6) the payment or gift at issue was intended for at least
one of four purposes: (a) to influence any act or decision of a
foreign official in his or her official capacity; (b) to induce a
foreign official to do or omit to do any act in violation of that
officials lawful duty; (c) secure any improper advantage; or (d)
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to induce a foreign official to use his or her influence with a
foreign government or department, agency, or instrumentality
thereof to affect or influence any act or decision of such
government, department, agency, or instrumentality; and(7) the payment or gift was intended to assist the defendant
in obtaining or retaining business for or with, or directing
business to, any person.
For the purposes of the FCPA, a persons state of mind is
knowing with respect to conduct, a circumstance, or a result if
(1) the person is aware that the person is engaging in the
conduct, that the circumstance exists, or that the result is
substantially certain to occur, or (2) the person has a firm
belief that such circumstance exists or that such result is
substantially certain to occur. Knowledge is established if a
person is aware of a high probability of the existence of a
circumstance.
PENALTIES
6. Defendant understands that the statutory maximum
sentence that the Court can impose for a violation of Title 15,
United States Code, Section 78dd-2(a), (g)(2)(A), is: five years
imprisonment; a three-year period of supervised release; a fine
of $100,000 or twice the gross gain or gross loss resulting from
the offense, whichever is greater; and a mandatory special
assessment of $100.
7. Defendant understands that supervised release is a
period of time following imprisonment during which defendant will
be subject to various restrictions and requirements. Defendant
understands that if defendant violates one or more of the
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conditions of any supervised release imposed, defendant may be
returned to prison for all or part of the term of supervised
release authorized by statute for the offense that resulted in
the term of supervised release, which could result in defendantserving a total term of imprisonment greater than the statutory
maximum stated above.
8. Defendant understands that, by pleading guilty,
defendant may be giving up valuable government benefits and
valuable civic rights, such as the right to vote, the right to
possess a firearm, the right to hold office, and the right to
serve on a jury. Defendant understands that once the court
accepts defendants guilty plea, it will be a federal felony for
defendant to possess a firearm or ammunition. Defendant
understands that the conviction in this case may also subject
defendant to various other collateral consequences, including but
not limited to revocation of probation, parole, or supervised
release in another case and suspension or revocation of a
professional license. Defendant understands that unanticipated
collateral consequences will not serve as grounds to withdraw
defendants guilty plea.
9. Defendant understands that, if defendant is not a
United States citizen, the felony conviction in this case may
subject defendant to: removal, also known as deportation, which
may, under some circumstances, be mandatory; denial of
citizenship; and denial of admission to the United States in the
future. The court cannot, and defendants attorney also may not
be able to, advise defendant fully regarding the immigration
consequences of the felony conviction in this case. Defendant
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understands that unexpected immigration consequences will not
serve as grounds to withdraw defendants guilty plea.
FACTUAL BASIS
10. Defendant admits that defendant is, in fact, guilty ofthe offense to which defendant is agreeing to plead guilty.
Defendant and the Department of Justice agree to the statement of
facts provided below and agree that this statement of facts is
sufficient to support a plea of guilty to the charge described in
this agreement and to establish the Sentencing Guidelines factors
set forth in paragraph 12 below but is not meant to be a complete
recitation of all facts relevant to the underlying criminal
conduct or all facts known to either party that relate to that
conduct.
Defendant DAVID EDMONDS was the Vice-President of Worldwide
Customer Service at CCI from in or around 2000 through in or
around 2007 and oversaw CCIs replacement parts sales and the
servicing of existing valves. Defendant EDMONDS was a citizen of
the United States and thus was a domestic concern as that term
is defined in the Foreign Corrupt Practices Act (FCPA), Title
15, United States Code, Section 78dd-2(h)(1)(A).
CCI was a Delaware corporation headquartered in Rancho Santa
Margarita, California, that designed and manufactured control
valves for use in the nuclear, oil and gas, and power generation
industries worldwide. CCI sold its products to both state-owned
and private companies in over thirty countries around the world.
Because CCI was organized under the laws of a State of the United
States and had its principal place of business in the United
States, it was a domestic concern as that term is defined in
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the FCPA, Title 15, United States Code, Section 78dd-2(h)(1)(B).
In conducting its business, CCI utilized a sales model known
as friend-in-camp (FIC), in which CCI employees and agents
cultivated relationships with, among other people, employees ofits customers. FICs, who were also referred to as consultants,
sometimes included employees of CCIs state-owned customers who
had the ability to influence the technical specifications of an
order or otherwise to direct business to CCI. Defendant EDMONDS
advocated the FIC sales model and encouraged CCI employees to
take good care of FICs.
One of CCIs customers was the Public Power Corporation of
Greece (Public Power), which owned and operated the Amynteon
and Aghios Dimitrios power plants. Defendant EDMONDS knew Public
Power was a Greek state-owned entity. Defendant EDMONDS
understands that at any trial, the government would prove
sufficient facts to demonstrate that Public Power was a
government instrumentality within the meaning of the FCPA, Title
15, United States Code, Section 78dd-2(h)(2)(A) and its employees
foreign officials within the meaning of the FCPA.
In or about 2000, CCI sought to obtain a contract for
replacement valves and the servicing of existing valves at the
Amynteon and Aghios Dimitrios power plants. On or about May 9,
2000, a CCI employee sought permission from defendant EDMONDS via
e-mail to pay a representative approximately $45,000 as the
representative has obligations to pay some friends with the
commission. On or about May 15, 2000, defendant EDMONDS
responded in an e-mail as follows: I approve the 15% commission
to [the representative] for [the Amynteon and Aghios Dimitrios
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orders].
Although defendant EDMONDS did not actually know that the
approximately $45,000 was to be offered, given, or promised to an
employee at Public Power for the purpose of securing PublicPowers business, he was aware of a high probability of this
circumstance and failed to make additional inquiries concerning
the nature of the commission and the suspected recipient in order
to determine whether the proposed commission payment might be
made to an employee at Public Power for the purpose of securing
Public Powers business. This awareness arose, at least in part,
from defendant EDMONDSs knowledge that, as described above,
CCIs sales model included the cultivation of FICs who sometimes
included employees of CCIs customers.
Although defendant EDMONDS did not know about the
prohibitions of the FCPA, defendant EDMONDS was aware that the
law would forbid making an undisclosed payment to an employee of
a customer for the purpose of securing the customers business.
SENTENCING FACTORS AND AGREED-UPON SENTENCE
11. Defendant understands that in determining defendants
sentence the Court is required to calculate the applicable
Sentencing Guidelines range and to consider that range, possible
departures under the Sentencing Guidelines, and the other
sentencing factors set forth in 18 U.S.C. 3553(a). Defendant
understands that the Sentencing Guidelines are advisory only.
12. Applying the November 1, 1998 Sentencing Guidelines
Manual, defendant and the Department of Justice agree to the
following applicable Sentencing Guidelines factors:
///
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Base Offense Level : 8 U.S.S.G. 2B4.1(a)
Specific OffenseCharacteristics
Value of the Bribe/
Improper Benefit : +6 U.S.S.G. 2B4.1(b)(1)Adjustments
Acceptance ofResponsibility : -2 U.S.S.G. 3E1.1(a)
Total Offense Level : 12
Criminal HistoryCategory : I
Guideline Range : 10 - 16 months imprisonment
$3,000 - $30,000 fine
Except as set forth in paragraph 13, the parties agree not to
argue that any other specific offense characteristics,
adjustments, or departures be imposed.
13. Defendant and the Department of Justice agree that,
taking into account the factors listed in 18 U.S.C. 3553(a)(1)-
(7), an appropriate disposition of this case is that the court
impose a sentence of: no more than 15 months imprisonment; three
years supervised release with conditions to be fixed by the
Court; up to a $20,000 fine; no amount of restitution; and a $100
special assessment.
WAIVER OF CONSTITUTIONAL RIGHTS
14. Defendant understands that by pleading guilty,
defendant gives up the following rights:
a) The right to persist in a plea of not guilty.
b) The right to a speedy and public trial by jury.
c) The right to be represented by counsel and if
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necessary have the court appoint counsel at trial. Defendant
understands, however, that, defendant retains the right to be
represented by counsel and if necessary have the court appoint
counsel at every other stage of the proceeding.d) The right to be presumed innocent and to have the
burden of proof placed on the government to prove defendant
guilty beyond a reasonable doubt.
e) The right to confront and cross-examine witnesses
against defendant.
f) The right to testify and to present evidence in
opposition to the charges, including the right to compel the
attendance of witnesses to testify.
g) The right not to be compelled to testify, and, if
defendant chose not to testify or present evidence, to have that
choice not be used against defendant.
h) Any and all rights to pursue any affirmative
defenses, Fourth Amendment or Fifth Amendment claims, and other
pretrial motions that have been filed or could be filed.
WAIVER OF STATUTE OF LIMITATIONS
15. Having been fully advised by defendants attorney
regarding application of the statute of limitations to the
offense to which defendant is pleading guilty, defendant hereby
knowingly, voluntarily, and intelligently waives, relinquishes,
and gives up: (a) any right that defendant might have not to be
prosecuted for the offenses to which defendant is pleading guilty
because of the expiration of the statute of limitations for those
offenses prior to the filing of the superseding information
alleging those offenses; and (b) any defense, claim, or argument
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defendant could raise or assert that prosecution of the offenses
to which defendant is pleading guilty is barred by the expiration
of the applicable statute of limitations, pre-indictment delay,
or any speedy trial violation.WAIVER OF APPEAL OF CONVICTION
16. Defendant understands that, with the exception of an
appeal based on a claim that defendants guilty plea were
involuntary, by pleading guilty defendant is waiving and giving
up any right to appeal defendants conviction on the offense to
which defendant is pleading guilty.
LIMITED MUTUAL WAIVER OF APPEAL OF SENTENCE
17. Defendant agrees that, provided the Court imposes the
sentence specified in paragraph 13 above, defendant gives up the
right to appeal any portion of that sentence.
18. The Department of Justice agrees that, provided the
Court imposes the sentence specified in paragraph 13 above, the
Department of Justice gives up its right to appeal any portion of
that sentence.
RESULT OF WITHDRAWAL OF GUILTY PLEA
19. Defendant agrees that if, after entering a guilty plea
pursuant to this agreement, defendant seeks to withdraw and
succeeds in withdrawing defendants guilty plea on any basis
other than a claim and finding that entry into this plea
agreement was involuntary, then (a) the Department of Justice
will be relieved of all of its obligations under this agreement;
and (b) should the Department of Justice choose to pursue any
charge that was either dismissed or not filed as a result of this
agreement, then (i) any applicable statute of limitations will be
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tolled between the date of defendants signing of this agreement
and the filing commencing any such action; and (ii) defendant
waives and gives up all defenses based on the statute of
limitations, any claim of pre-indictment delay, or any speedytrial claim with respect to any such action, except to the extent
that such defenses existed as of the date of defendants signing
this agreement.
EFFECTIVE DATE OF AGREEMENT
20. This agreement is effective upon signature and
execution of all required certifications by defendant,
defendants counsel, and an Assistant United States Attorney.
BREACH OF AGREEMENT
21. Defendant agrees that if defendant, at any time after
the signature of this agreement and execution of all required
certifications by defendant, defendants counsel, and an
Assistant United States Attorney, knowingly violates or fails to
perform any of defendants obligations under this agreement (a
breach), the Department of Justice may declare this agreement
breached. All of defendants obligations are material, a single
breach of this agreement is sufficient for the Department of
Justice to declare a breach, and defendant shall not be deemed to
have cured a breach without the express agreement of the
Department of Justice in writing. If the Department of Justice
declares this agreement breached, and the Court finds such a
breach to have occurred, then: (a) if defendant has previously
entered a guilty plea pursuant to this agreement, defendant will
not be able to withdraw the guilty plea, (b) the Department of
Justice will be relieved of all its obligations under this
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agreement, and (c) the Courts failure to follow any
recommendation or request regarding sentence set forth in this
agreement will not provide a basis for defendant to withdraw
defendants guilty plea.22. Following the Courts finding of a knowing breach of
this agreement by defendant, should the Department of Justice
choose to pursue any charge that was either dismissed or not
filed as a result of this agreement, then:
a) Defendant agrees that any applicable statute of
limitations is tolled between the date of defendants signing of
this agreement and the filing commencing any such action.
b) Defendant waives and gives up all defenses based
on the statute of limitations, any claim of pre-indictment delay,
or any speedy trial claim with respect to any such action, except
to the extent that such defenses existed as of the date of
defendants signing this agreement.
c) Defendant agrees that: (i) any statements made by
defendant, under oath, at the guilty plea hearing (if such a
hearing occurred prior to the breach); (ii) the agreed to factual
basis statement in this agreement; and (iii) any evidence derived
from such statements, shall be admissible against defendant in
any such action against defendant, and defendant waives and gives
up any claim under the United States Constitution, any statute,
Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the
Federal Rules of Criminal Procedure, or any other federal rule,
that the statements or any evidence derived from the statements
should be suppressed or are inadmissible.
///
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COURT AND PROBATION OFFICE NOT PARTIES
23. Defendant understands that the Court and the United
States Probation Office are not parties to this agreement and
need not accept any of the Department of Justices sentencingrecommendations or the parties agreements to facts, sentencing
factors, or sentencing. Defendant understands that the Court
will determine the facts, sentencing factors, and other
considerations relevant to sentencing and will decide for itself
whether to accept and agree to be bound by this agreement.
24. Defendant understands that both defendant and the
Department of Justice are free to: (a) supplement the facts by
supplying relevant information to the United States Probation
Office and the Court, (b) correct any and all factual
misstatements relating to the Courts Sentencing Guidelines
calculations and determination of sentence, and (c) argue on
appeal and collateral review that the Courts Sentencing
Guidelines calculations and the sentence it chooses to impose are
not error, although each party agrees to maintain its view that
the calculations and sentence referenced in paragraphs 12 and 13
are consistent with the facts of this case. While this paragraph
permits both the Department of Justice and defendant to submit
full and complete factual information to the United States
Probation Office and the Court, even if that factual information
may be viewed as inconsistent with the facts agreed to in this
agreement, this paragraph does not affect defendants and the
Department of Justices obligations not to contest the facts
agreed to in this agreement.
///
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NO ADDITIONAL AGREEMENTS
25. Defendant understands that, except as set forth herein,
there are no promises, understandings, or agreements between the
Department of Justice and defendant or defendants attorney, andthat no additional promise, understanding, or agreement may be
entered into unless in a writing signed by all parties or on the
record in court.
///
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